Can a lawyer sign a form stating that he explained a release agreement to the client, and how far can such an attestation go?

Plain-English summary

The Committee was asked whether a lawyer is ethically barred from signing an affirmation, in connection with a client's execution of a release agreement, attesting that the lawyer represents the releasor and has carefully and fully explained the terms, provisions, and effects of the release, and that the releasor represented that he believes he understands them. The opinion concluded there is no ethical prohibition against signing that limited form, while cautioning that the conclusion is confined to that specific form.

The opinion explained that a lawyer representing a client who executes a release already has an ethical duty to do what the affirmation describes, under Rules 1.1, 1.2, 1.3, and 1.4, because releases often incorporate doctrines like those in Witt v. Watkins and Young v. State that a lay client cannot be expected to grasp without explanation. It reasoned that although Rule 1.6 bars disclosing information relating to the representation without consent, the rule permits disclosures impliedly authorized to carry out the representation, and a lawyer signing such an affirmation is impliedly authorized to make that representation, consistent with the comment's recognition that a lawyer may make a disclosure that facilitates a satisfactory conclusion in negotiations.

The opinion drew a firm line, however: a lawyer cannot warrant the client's state of mind or categorically state that the client understands the release. A lawyer may explain the terms and acknowledge the client's stated belief, but any affirmation purporting to warrant the client's understanding is inappropriate, creates a potential conflict between lawyer and client, and probably violates Rules 1.6 and 1.7(b). The opinion noted that a lawyer who properly advised the client will almost certainly become a witness if the client later tries to set aside the release, so under Rule 1.7(b) the lawyer's representation would be materially limited by the lawyer's own interest in showing he gave proper advice. The Committee concluded that asking a lawyer to make such a warranty, or making it, would be unethical (citing Rule 8.4(a)), while taking no view on whether the form is necessary or appropriate as a matter of contract negotiation.

Currency note

This opinion was issued in 1996, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer sign a form saying he explained a release to the client?

A: The opinion concluded a lawyer may sign a limited form attesting that he carefully explained the release and that the client represented he believes he understands it.

Q: Could the lawyer attest that the client actually understood the release?

A: No. The opinion concluded a lawyer may not warrant the client's state of mind or categorically state that the client understands the release; doing so creates a conflict and probably violates Rules 1.6 and 1.7(b).

Q: Why would warranting the client's understanding create a conflict?

A: Per the opinion, a lawyer who advised the client will likely be a witness if the client later challenges the release, so under Rule 1.7(b) the lawyer's own interest in proving he gave proper advice would materially limit the representation.

Q: Is it improper to ask a lawyer to make that warranty?

A: The opinion concluded it would be unethical both to make and to ask for such a warranty, citing Rule 8.4(a).

Background and rules framework

The opinion interpreted Alaska Rules of Professional Conduct 1.6 (confidentiality, including implied-authorization disclosures; Model Rule 1.6), 1.7(b) (conflicts where the lawyer's own interests materially limit representation; Model Rule 1.7), and 8.4(a) (violating the rules through the acts of another; Model Rule 8.4), and touched on the lawyer-as-witness concern reflected in Model Rule 3.7. It referenced the lawyer's competence and diligence duties (Rules 1.1 through 1.4) and the Alaska Supreme Court decisions Witt v. Watkins, 579 P.2d 1065 (Alaska 1978), and Young v. State, 455 P.2d 889 (Alaska 1969).

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.6 (confidentiality), 1.7(b) (conflicts), 8.4(a) (acts through another)
• Alaska RPC 1.1, 1.2, 1.3, 1.4 (competence, scope, diligence, communication)

Cases:

• Witt v. Watkins, 579 P.2d 1065 (Alaska 1978)
• Young v. State, 455 P.2d 889 (Alaska 1969)

See also

• FL Bar Ethics Op. 64-36: Lawyer Signing Client Affidavits
• AL Ethics Op. 1991-19: Lawyer-as-Witness and Pre-Trial

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/96-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 96-5
Ethical Issues, If Any, Raised By The
Use Of An “Attorney’s Representation” Form
In Conjunction With The Execution Of Release Agreements
The Committee has been asked whether an attorney is ethically
prohibited from signing an affirmation or representation concerning an
attorney’s advice to a client in conjunction with the execution of a release
agreement. For purposes of this opinion, the Committee will assume the
affirmation or representation reads as follows:
I, [attorney], of Anchorage, Alaska declare that I am
the attorney representing Releasor in the abovematter, and that I have carefully and fully explained
the terms, provisions and effects of this release to
Releasor, and that Releasor has represented to me that
he/she believes they understand the terms thereof and
significance of said terms.

[Attorney]
In the Committee’s view, there is no ethical prohibition to using this type
of affirmation or representation. However, the Committee’s opinion is confined
solely to the form of affirmation cited above. There are, or may be, serious
ethical issues raised if an attorney affirms, or is asked to confirm, matters
which go beyond the scope of the sample form. Further, the use of these forms
is a matter of negotiation between the parties and/or contract formation. The
Committee does not express any view as to whether such forms are necessary
or appropriate; its observations are limited solely to the ethical issues, if any.
DISCUSSION
At the outset, it is important to emphasize that an attorney representing
a client called upon to execute a release agreement as part of a settlement has
an ethical duty and obligation to do what is spelled out in the affirmation. See
ARPC 1.1, 1.2, 1.3, and 1.4.

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For instance, many releases incorporate by reference the decisions by the
Alaska Supreme Court in Witt v. Watkins, 579 P.2d 1065 (Alaska 1978)
(release agreement is enforceable unless, at time of signing of release, releasor
did not intend to discharge disabilities which were subsequently discovered)
and Young v. State, 455 P.2d 889 (Alaska 1969) (release of one tortfeasor does
not release other joint tortfeasors unless such tortfeasors are specifically
named in the release.) A client reading the release agreement would have no
knowledge or understanding of the import of these decisions, and although the
client may understand the other terms and conditions of the release, there are
matters addressed in the release which are simply beyond the ken of a lay
person and which require an attorney to explain.
While a lawyer is not permitted to reveal information relating to
representation of a client unless the client consents after consultation, ARPC
1.6 does allow “disclosures that are impliedly authorized in order to carry out
the representation . . . .” In the Committee’s view, an attorney signing an
affirmation along the lines outlined above is “impliedly authorized” to make
that representation. For instance, in the comment to the Rule, it points out
that “a lawyer may disclose information . . . in negotiations by making a
disclosure that facilitates a satisfactory conclusion.”
However, an attorney cannot make a warranty regarding the client’s state
of mind when he or she signs a release, nor can the attorney categorically state
that the client understands the terms and effects of a release. The attorney
can carefully and fully explain the terms and effects of the release to the client,
and the attorney can acknowledge the client’s belief that he or she understands
those terms and effects. Any affirmation or statement which purports to be a
warranty by the attorney regarding the client’s state of mind, or the client’s
understanding of the release, is inappropriate and does create a potential
conflict between the attorney and the client which is unnecessary and probably
violates the attorney’s duties to the client under ARPC Rule 1.6 and 1.7(b).
If an attorney has fulfilled his or her ethical obligations to the client in
advising the client about the execution of a release, that attorney will almost
certainly be a witness in the event the client attempts to revive the subject
matter of the release. In that event, the attorney who represented that client is
necessarily implicated in the client’s effort to overturn the release and,
pursuant to ARPC 1.7(b), the lawyer could not ethically represent the client in
that instance because his representation “may be materially limited . . . by the
lawyer’s own interests. . . .” The rule prohibits the attorney from going forward
with the representation unless “the lawyer reasonably believes the
representation will not be adversely affected.” However that belief is very

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doubtful under the circumstance where the client is attempting to set aside the
release because the lawyer has a strong interest in protecting himself or herself
by proving that he or she gave proper advice to the client, and this testimony
would not inure to the benefit of the client under any circumstance.
In conclusion, as long as the attorney representation merely
acknowledges fulfillment of the attorney’s obligation to explain the terms and
effects of a release agreement, and an acknowledgment that the client
“believes” he or she understands the terms and provisions of that agreement,
the Committee believes there is no ethical constraint which would prevent the
attorney from signing that limited statement. However, to the extent the
attorney is asked to somehow warrant the client’s state of mind, or the client’s
understanding of the release agreement, the attorney is being asked to
potentially create a conflict situation with the client which is neither necessary
nor desirable. It would be unethical for an attorney to make such a warranty
under the circumstances, and it would be unethical to ask the attorney to
make such a representation. See ARPC Rule 8.4(a). The Committee takes no
view on whether the use of the form, as outlined above, is necessary or
appropriate. This is a matter of contract negotiation between the parties. As
long as the form is limited in its scope, the Committee believes there are no
ethical constraints which would prevent the attorney from signing the
statement.
Approved by the Alaska Bar Association Ethics Committee on June 6, 1996.
Adopted by the Board of Governors on August 22, 1996.

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